Ibrahim & another v Zumzum Investment Limited & another (Civil Application E058 of 2024) [2024] KECA 862 (KLR)
The bottom line
#Kenya's Court of Appeal gave Zumzum Investment seven extra days to appeal because a four-day delay caused by a lawyer's missed diary entry was forgivable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the supporting affidavit sworn by the applicants' advocate, contrary to rule 9 of the Advocates Practice Rules, is incompetent
- 2.Whether the delay of 4 days in filing the Notice of Appeal was inordinate
- 3.Whether the applicants provided a satisfactory explanation for the delay
- 4.Whether the intended appeal is arguable and whether the respondents would suffer prejudice if extension is granted
Key legal issues
#Competency of an advocate swearing the supporting affidavit on a contested application
The objection fails. Rule 9 permits an advocate to swear an affidavit on formal or non-contentious matters; where the delay arose from counsel's own omission to diarise the judgment date, counsel is the best person to depone to it.
The general rule is that advocates should not swear affidavits in contested matters, since this exposes them to cross-examination and the role of witness. However, the depositions here concerned counsel's own shortcomings — facts within his personal knowledge that his client could only depone to on information from him. This Court's decisions in Pattni v Ali and Hakika Transporters recognise that rule 9 permits affidavits on formal or non-contentious matters within counsel's own knowledge.
Whether the delay was inordinate and satisfactorily explained
A 4-day delay is not inordinate, and the inadvertent failure by counsel to diarise the judgment date, amid multiplicity of litigation between the same parties, constitutes a satisfactory explanation.
The delay of four days has not been contended to be inordinate, and precedent holds a four-day delay is not inordinate. Mistakes of counsel, including failure to diarise a hearing or judgment date, can amount to sufficient cause under rule 4, particularly where counsel acted expeditiously on becoming aware of the error. The error arose from the conundrum of several matters between the same parties in several courts.
Arguability of the intended appeal and the weight to be given to chances of success
The res judicata ground is arguable. Chances of success play a peripheral role where other conditions are fulfilled and the applicant has a right of appeal.
The third Rule 4 factor is only a 'possible' consideration, not mandatory; arguability does not outweigh all other factors, and treating it as decisive would be open to abuse. An arguable appeal is one that is not frivolous and deserves to be argued fully. Here the res judicata issue, arising from the judgment in Civil Case No. E051 of 2021, is certainly arguable though its success is not for a single judge to determine.
Prejudice to the respondent and the curative role of costs
No prejudice incapable of compensation by costs was demonstrated; in the absence of fraud or intention to overreach, the default is curable by costs and the application should be allowed.
The respondents did not contend that they would suffer prejudice not compensable by costs if the application were allowed. Courts exist to decide the rights of the parties, not to impose discipline; costs are the panacea that heals every sore in litigation. Under the current constitutional dispensation, cases ought as far as possible to be determined on their merits rather than on technicalities of procedure.
Legal principles established
#- The four Rule 4 extension-of-time principles: period of delay, reasons for delay, arguability of the intended appeal (peripheral), and prejudice to the respondent — non-exhaustive, with Sections 3A and 3B of the Appellate Jurisdiction Act's overriding objective also considered.
- Unless there is fraud or intention to overreach, a default curable by costs ought not to nullify legal proceedings; cases should be determined on merits rather than procedural technicalities.
- A delay of four days in filing a Notice of Appeal is not inordinate.
- An advocate may properly swear an affidavit on formal or non-contentious matters within his personal knowledge as counsel, notwithstanding the general prohibition in rule 9 of the Advocates Practice Rules.
Court orders
#- 1.Extension of time within which the Notice of Appeal against the judgment of Magare, J delivered on 9th May 2024 in Mombasa High Court, Commercial and Tax Division Petition No. E001 of 2023 is to be filed, by a further 7 days from the date of the delivery of the ruling
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Mombasa High Court, Commercial and Tax Division Petition No. E001 of 2023
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file Notice of Appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I accordingly allow the Notice of Motion dated 31st May 2024, and extend the time within which the Notice of Appeal against the judgement of Magare, J delivered on 9th May 2024 in Mombasa High Court, Commercial and Tax Division Petition No. E001 of 2023, is to be filed with a further 7 days from the date of the delivery of this ruling.
The costs of this application are awarded to the 1st respondent.
Unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs since the Courts exist for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.
In this case however, the issue of res judicata is certainly arguable. It may not necessarily succeed but that is not a determination that is within the province of a single Judge.
In my view, in the circumstances of this case the best person to have sworn the afidavit was Mr. Mwangi.
Issues in the judgment
#The judgment's opening paragraph describes the application as brought by 'the applicants' but the coram/bench listing does not set out the full names of all applicants or the respondents' designations beyond the 1st and 2nd respondents, and the 2nd respondent is referred to as the 'nominal respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others[2026] KESC 33 (KLR)15 May 2026
- Muthui & 19 others v County Government of Kitui & 7 others (Environment & Land Petition 26 of 2021) [2025] KEELC 909 (KLR)[2025] KEELC 909 (KLR)27 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Ibrahim & another v Zumzum Investment Limited & another (Civil Application E058 of 2024) [2024] KECA 862 (KLR)", Case Analysis (2024). Civil Application (Notice of Motion dated 31st May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/862/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.